DRI is taking the lead on making sure that attorneys are prepared to handle litigation relating to the Gulf Coast oil spill and related damage. On August 12 - 13, 2010, DRI will present a comprehensive, high-end seminar entitled Oil Spill Litigation and Emerging Issues, in Houston, Texas, the epicenter of the litigation that has already begun. Leading counsel from both the oil and gas industry and private practice toxic tort and disaster litigation law firms will present on emerging issues in large-scale disaster litigation. Technical experts and petroleum engineers will present on the relevant scientific issues, and trial lawyers from both the plaintiff and defense perspective will present their views on:

Multidistrict Litigation (MDL)

Engineering and Technical Analysis

Business to Business Litigation

Insurance Coverage and Policy Exclusions

Causation and Economic Losses

Damages and Contributions

Oil Pollution Act Breakdown

Civil and Criminal Exposures

State and Federal Venue Implications

DRI is once again at the forefront of helping lawyers be prepared for complex litigation and this seminar will provide great legal and technical education and an opportunity to network with some of the leading players in the mass tort, oil and gas, and disaster insurance litigation industry. A preliminary brochure and registration are available at the following link: http://www.dri.org/open/SeminarDetail.aspx?eventCode=20100193

Important Patent Ruling: Today the U.S. Court of Appeals for the Federal Circuit upheld the trial court verdict rendered in favor of plaintiff i4i Limited Partnership and against Microsoft Corporation in the amount of $240,000,000. Perhaps more importantly, it upheld the permanent injunction issued against Microsoft barring future sales of Microsoft Word products which contain the infringing "custom XML editor" software. The Fed Circuit set the effective date of the injunction as January 11, 2010. Microsoft obviously has the right to petition the Supreme Court for certiorari, but the issues don't seem sexy enough for Supreme Court interest. The Fed Circuit was reviewing a jury verdict in this case and therefore its review was "limited and deferential". I will report more after review of the Opinion, which is attached.

The Eastern District of Texas has struck again and in denying post trial motions, awarded Patent Holder i4i Limited Partnership a judgment against Microsoft of $290 Million and more importantly, issued a permanent injunction against Microsoft prohibiting the future sale of Microsoft Word 2003 and 2007 if it contains the infringing elements (which it currently does). This is a blow to Microsoft not in terms of the relative pocket change to them of $290 Million, but in having to deal with the injunction. The court applied the four prong test set forth in eBay v. MercExchange and found that i4i proved all four factors for permanent injunction. Microsoft promises an appeal, but the court appears to have applied the correct law to the request for injunction and this might make it tough going for Microsoft. The court threw Microsoft a small bone when it set the injunction date out 60 days but Microsoft will need to either obtain a Federal Circuit stay of the injunction or do a quick design around or patch. Of course, Microsoft could always acquire the claimant i4i - for say $290 Million. The judge did not appear to believe that Microsoft was too big to enjoin, or that threatening the incredible pervasiveness of Word was a disservice to public policy. He found no such issue in prong four of the eBay test. There are numerous issues with which the Federal Circuit might find a problem on the merits of the ruling, but a jury spoke, a judge denied post trial motions and issued a permanent injunction. The written opinion is very strongly worded and strikes down every Microsoft argument. We will monitor for at least the next 60 days.

Another big firm bites the dust. Today, 106 year old Philadelphia law firm Wolf Block voted to dissolve. After years of trying to get mega sized by merger, Wolf Block decided that the collapse of their corporate work and the tough economy were too much to handle and there they went. Poof. To me, this reinforces the belief that smaller and medium sized litigation boutiques are well positioned to capture work that clients will not want to send to mega firms with mega billing rates. As the Thelens, Hellers and other medium-large firms succomb to mega firm envy, their clients may not want to succomb to mega firm billing rates and overall litigation costs. Litigation boutiques offer lower cost for partner level trial experience and they should not hesitate to be aggressive in courting business that might otherwise go to larger firms and certainly firms that are dissolving.

DRI is hosting today and tomorrow a Corporate Counsel Roundtable here in New York City. Corporate Counsel from around the country are hearing a great CLE program aimed at the most important concerns that Corporations and their legal departments face. One of the most interesting presentations so far is a panel discussion presenting on the issue of corporate conduct in litigation. A lawyer involved in prosecuting corporate misconduct stated his advice to corporations quite succinctly: Its all about attitude and knowledge. When being investigated, “don’t show up with the attitude that the investigator is stupid about corporate ways and doesn’t understand the industry that he is investigating.” “Leave that attitude at the door.” Another panelist told the story of the famous Zubulake case, an employment discrimination case which produced a $29 million verdict including $20 Million in punitives. It also produced a raft of opinions on e-discovery which are now legend. What is the lesson from that case? It is a plaintiff lawyer’s worst E-discovery problem if a corporation appears to be reasonable in its response to e-discovery requests. If a corporation is arrogant, obstinate and refuses to produce anything and tells the plaintiff “get a court order” – the plaintiff’s lawyer is confident of assistance from the court. If the defendant corporation appears reasonable, and agrees to reasonable appearing parameters to govern the production, it will make it tough for the plaintiff’s lawyer to appeal to the court for more. Again, the appearance of cover up here is worse than the crime. Corporations still struggle with e-discovery issues and many don’t have a good e-discovery plan for litigation (and pre-litigation conduct relating to document retention and retrieval). Corporations should consult with e-discovery lawyer experts to establish such a plan which will greatly assist them in litigation or corporate investigations.